For many aspiring foreign nationals looking to take up employment in the United States and live the American Dream the H-1B non-immigrant visa provides a popular visa category to make this dream a reality. However, the process of obtaining such a visa is very much a chance of luck, a game of roulette, where there are more winners than losers. For many the dream remains just that.
What exactly is the H-1B visa?
The H-1B is a temporary (nonimmigrant) visa category that allows an employer to petition for highly educated foreign professionals to work in “specialty occupations” that require at least a bachelor’s degree or the equivalent. Examples of such specialty occupations includes, lawyers, engineers, doctors and physicians.
Typically, holders of a H-1B visa classification have valid status in the U.S for three years, which may be extended for a maximum of six years. The huge advantage to this visa category is the “dual- intent” element – that the beneficiary will not have to show that they intend to return to their home country at the end of his or her visa status, which is required for other visa’s such as the E visa category.
The H-1B Process
For the U.S employer to sponsor the foreign national for the H-1B they must go through the rigid requirements to show United States Citizenship and Immigration Services (USCIS) that this hire will not harm the U.S. work force. The employer will do this by firstly, attesting, on a labor condition application (LCA) certified by the Department of Labor (DOL), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers and there was no willing and able U.S worker to do the job at the time of filing of the application.
The policy behind the requirements is simply to protect the U.S market – to prevent the flooding of the U.S market, forcing wages to be lower and is arguably in the best interest of the U.S work force. The counter argument is the protection goes too far and rather and does not keep up with the demands of the labour market.
Policy to protect U.S workers is to limit the number of H-1Bs made available each year. The current annual statutory cap is 65,000 visas, with 20,000 additional visas for foreign professionals who graduate with a master’s degree or doctorate from a U.S. institution of higher learning.
The issue is the statutory limit is hugely oversubscribed. In 2020 it took 5 business days after the filling season had started to reach over the cap. The 2023 and 2024 window provided maybe the visa category’s worst years with USCIS having reported 780,884 H-1B registrations for FY 2024, an increase of 61% over the 483,927 registrations for FY 2023.
The USCIS (or in our analogy the House) after oversubscription it will run a lottery to see who be allocated a visa. As the 2023/2024 FY had shown many aspiring workers , life is unfair and they will have to try again next year.
Alternatives to the lottery?
One Alternative can be found in INA 214(g)(5)(A), known as the University Exemption or Affiliated Non-profit Entity Exception. Here if the applicant is offered employment from the institution of higher education in America or a related affiliated non-profit entity to the University then that applicant and their petitioner can avoid the lottery and apply any time in the year.
But shoot, what if I’ve got a private employer? The exemption is still possible; the petition may qualify if the beneficiary can show that although they will not work for non-profit or higher institution, but rather will work with them, then they can avoid the lottery too. The catch, is that the petition will be required to show that the beneficiary work will be “furthering the essential purpose, mission objectives or functions” of the qualifying institution.
The other alternative is to see if you qualify for other Visa, such as the, O1 Individuals with Extraordinary Ability or Achievement, L visa or E visa categories.
Conclusion
Unless Congress increases the statutory limit on the number of H-1Bs made available each year, the H-1B Visa category will remain a visa of luck stopping many talented and skilled workers to the U.S economy. In the meantime, apprising workers should make sure they don’t qualify for another U.S. before they take their roll of the dice with the H-1B lottery system. May the odds be ever in your favor.
The Scottish Constitutionalist 
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